MCZEAL v. SCHOOL DISTRICT OF PHILADELPHIA

Filing 32

MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/16/11. 5/17/11 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTOINETTE MCZEAL
Plaintiff,
v.
SCHOOL DISTRICT OF
PHILADELPHIA,
Defendant.

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CIVIL ACTION
NO. 09-2554

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

I.

MAY 16, 2011

INTRODUCTION
Plaintiff Antoinette McZeal (“Plaintiff”) brings this

employment discrimination action against the School District of
Philadelphia (“Defendant”), claiming that Defendant retaliated
against her in five different ways.

According to Plaintiff,

three of the retaliatory acts followed Plaintiff’s filing of a
sexual harassment claim, while two followed Plaintiff’s filing of
this lawsuit.

In total, Plaintiff asserts eight counts of

retaliation—five under Title VII, and three under the
Pennsylvania Human Relations Act (the “PHRA”).1

1

Defendant moves

Plaintiff specifically pleads: in Counts One and Six,
claims under Title VII and the PHRA respectively for Plaintiff’s
transfer to a lower pay grade; in Counts Two and Seven, claims
under Title VII and the PHRA respectively for Plaintiff’s failure

for summary judgment, contending that Plaintiff’s retaliation
claims are legally insufficient.
For the reasons set forth below, Defendant’s motion
will be granted.

II.

BACKGROUND2
On September 5, 2005, Plaintiff brought a sexual

harassment lawsuit against Defendant after her supervisor
allegedly gave her sexually explicit birthday cards.
¶ 8; McZeal Dep. at 12:12-18, 17:8-16.)3

(Am. Compl.

In January 2006,

Plaintiff settled the harassment claim with Defendant.
Compl. ¶ 9; McZeal Dep. at 12:19-24.)

(Am.

Plaintiff executed a

written settlement agreement on January 11, 2006, which Defendant
signed on January 20, 2006.

(Am. Compl. ¶ 9.)

In addition to

this agreement, the parties had a separate oral agreement whereby

to be compensated for overtime performed; in Counts Three and
Eight, claims under Title VII and the PHRA respectively for
Plaintiff’s failure to be promoted; in Count Four, a claim under
Title VII for denying Plaintiff keycard access to her office; and
in Count Five, a claim under Title VII for not giving Plaintiff
enough work.
2

In accordance with the applicable standard of review,
see infra Part III, the facts set forth in this section view the
evidentiary record in the light most favorable to Plaintiff.
3

Defendant’s exhibits appear unsorted in ECF document
number 26. For ease, citations to Plaintiff’s deposition, which
appears in that filing, are referred to as “McZeal Dep.”
Citations to other materials within ECF document number 26 are
titled “Def.’s Exs.” and followed by the most helpful identifying
information available under the circumstances.
2

Plaintiff would be transferred to a new position within
Defendant’s employ.

(Id. ¶¶ 10-11.)

While the new role had a

lower salary, Plaintiff was to be paid at her previous rate.
(Id. ¶ 11-12.)
Indeed, as a January 13, 2006 e-mail Defendant sent
Plaintiff’s counsel to “memorialize” the parties’ understanding
stated:
Ms Mc.Zeal requested a position in Student Placement. As we
discussed yesterday, Ms. McZeal will take a position in
Student Placement as a Student Placement Support Clerk. She
will begin the position on Monday, January 23, 2006.
Her
salary in that position will be $48,356 (PFT 22). Because the
current maximum salary of the Student Placement Support Clerk
position is $40,533 (PFT 17), Ms. McZeal’s salary of $48,356
will be “red-circled” (frozen) until the ordinary salary for
the position reaches her salary via raises and other
adjustments.
(Def.’s Exs., Dixon Dep. Ex. 3.)

“Red-circling” is a policy

provided for in the collective bargaining agreement between
Defendant and Plaintiff’s union under which “an employee moved to
a lower paid classification shall . . . retain his/her former
rate . . . until such time as the rate for that new
classification reaches his/her red-circled rate after which
he/she shall be entitled to such increases as are applicable to
the classification into which he/she has moved.”

(Def.’s Exs.,

SDP 00203; see Am. Compl. ¶¶ 12-13.)

Red-circling occurs

automatically in the payroll system.

(See McZeal Dep. at

118:7-14; Def.’s Exs., SDP 00001-00008.)

Thus, if an employee is

red-circled but is supposed to receive approved pay increases,
3

the payroll staff must enter a manual override.

(Id.)

Despite the abovementioned e-mail sent to Plaintiff’s
counsel, Plaintiff did not realize that the transfer to the
Office of Student Placement would lead her to be red-circled.
Instead, she first learned of the pay freeze in April 2007 when
she did not receive a pay increase that others in Plaintiff’s
union received.

(McZeal Dep. at 117:3-118:14.)

Plaintiff

complained to her union, but was told “that the policy was
standard procedure.”

(Am. Compl. ¶ 13.)

Eventually, Plaintiff

spoke about the red-circle with Dr. Cassandra Jones, Defendant’s
Chief Academic Officer, to “see what she could do to help me.”
(McZeal Dep. at 145:4-5.)

Dr. Jones directed that Plaintiff

receive the April 2007 pay increase as well as any future
increases.

(Id. at 151:1-14, 152:4-17.)

Plaintiff received a

retroactive pay increase as a result, and has since had manual
entries made by Defendant’s payroll staff to override the
red-circle.

(Id. at 152:8-11, 153:16-154:1.)

In her new capacity as a Support Services Clerk,
Plaintiff reported to LeTretta Jones who, as Plaintiff’s
supervisor, had to approve any overtime requests in advance.
(See id. at 26:12-15; see also Def.’s Exs., SDP 00064.)

Between

the months of October and December 2007, Plaintiff worked
thirteen hours of overtime for which she was allegedly not
compensated.

(McZeal Dep. at 128:17-21, 130:2-6; Def.’s Exs.,

4

McZeal Dep. Ex. 5.)

Plaintiff, however, received overtime

payments during this period, (see Def.’s Exs., SDP 00004
(itemizing 17.25 hours of overtime payment to be paid to
Plaintiff for November 2007)), and was informed that Ms. Jones
had concluded that Plaintiff was “paid overtime for all the hours
that [she] worked” after “review[ing] the request for overtime
documents . . . submitted and compar[ing] them with the
TPER/payroll.”

(Def.’s Exs., SDP 00043.)

In the meantime, Plaintiff began pursuing a new job
with Defendant after learning Defendant’s School Safety
department was “having problems with that office with the
payroll.”

(McZeal Dep. at 155:7-9.)

To that end, she introduced

herself to Brendan Lee, Defendant’s Executive Director of School
Safety, and later met with him to discuss the creation of a new
“Financial Coordinator” position.

(Def.’s Exs., SDP SJM Ex.;

McZeal Dep. at 157:8-14, 176:5-9.)

In connection with this

latter meeting, which Plaintiff considered to be an interview,
Plaintiff prepared a job description of the proposed position.
(McZeal Dep. at 163:18-24.)

Plaintiff recognized, however, that

no specific position had been created.

(Id. at 176:12-15.)

Ultimately, on March 25, 2008, Lee informed Plaintiff that the
position could not be created within the department’s budget.
(Pl.’s Resp. In Opp., Ex. 8.)
been created.

To this day, no such position has

(Def.’s Exs., SDP SJM Ex.)

5

On June 5, 2009, Plaintiff filed this lawsuit.

Later

that year, between the months of November 2009 and December 2009,
Plaintiff’s keycard for Defendant’s building did not work during
after-business hours when Plaintiff arrived to complete
pre-approved overtime.

(McZeal Dep. at 241:20-242:4.)

Building

security staff informed Plaintiff that they had received an
e-mail from Ms. Jones directing them to let Plaintiff into the
office during these hours.

(Id. at 243:3-18.)

This was

necessary because Plaintiff, along with another employee, was not
afforded the 24/7 building access that at least one other
employee of Defendant had.

(Def.’s Exs., SDP 00180.)

Plaintiff

was always let into the facility during the relevant period, and
worked all approved overtime hours.

(McZeal Dep. at 245:15-23;

Am. Compl. ¶ 46.)
Thereafter, beginning in January 2010 and through
February 2010, Plaintiff observed other employees of Defendant,
including Ms. Jones, perform work that Plaintiff had ordinarily
been assigned.

(Am. Compl. ¶ 32; McZeal Dep. at 247:8-23.)

Plaintiff was informed that the shortage of work arose because
Ms. Jones was “swamped with things that she had to get done by a
deadline.”

(McZeal Dep. at 252:18-19.)

Nevertheless, Plaintiff

received her full salary and benefits during this time.
251:16-18.)

6

(Id. at

III. DISCUSSION
A.

Legal Standard
Summary judgment is appropriate if there are no genuine

issues of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

“A motion

for summary judgment will not be defeated by ‘the mere existence’
of some disputed facts, but will be denied when there is a
genuine issue of material fact.”

Am. Eagle Outfitters v. Lyle &

Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

A fact is

“material” if proof of its existence or nonexistence might affect
the outcome of the litigation, and a dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”

Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views the facts
in the light most favorable to the nonmoving party.

“After

making all reasonable inferences in the nonmoving party’s favor,
there is a genuine issue of material fact if a reasonable jury
could find for the nonmoving party.”

Pignataro v. Port Auth. of

N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance
Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)).

While

the moving party bears the initial burden of showing the absence
of a genuine issue of material fact, meeting this obligation
shifts the burden to the nonmoving party who must “set forth

7

specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250.

B.

Plaintiff’s Retaliation Claims
Both “Title VII and the PHRA protect employees from

discrimination by their employers on the basis of race, color,
religion, sex or national origin.”

Fusco v. Bucks Cnty., No.

08-2082, 2009 WL 4911938, at *6 (E.D. Pa. Dec. 18, 2009)
(Robreno, J.).

Where, as here, the retaliation claims under both

Title VII and the PHRA are based on indirect evidence, the
framework set forth in McDonnell Douglas Corporation v. Green4
governs.
2001).

See Weston v. Pennsylvania, 251 F.3d 420, 432 (3d Cir.
Under this test, the plaintiff bears the initial burden

of showing “that (1) she engaged in a protected employment
activity, (2) her employer took an adverse employment action
after or contemporaneous with the protected activity, and (3) a
‘causal link’ exists between the adverse action and the protected
activity.”5

Andreoli v. Gates, 482 F.3d 641, 649 (3d Cir. 2007).

Upon making this showing, the burden shifts to the employer “to
set forth a legitimate, nondiscriminatory reason for its action.”

4

411 U.S. 792 (1973).

5

“The same standards, decisional law, and analysis apply
to retaliation claims under both Title VII and the PHRA.” Fusco,
2009 WL 4911938, at *11 n.8 (citing Slagle v. Cnty. of Clarion,
435 F.3d 262, 265 n.5 (3d Cir. 2006)).
8

Seeney v. Elwyn, Inc., No. 08-5032, 2010 WL 1657185, at *3 (E.D.
Pa. Apr. 22, 2010) (Robreno, J.).

If the employer does so, the

burden shifts back to the plaintiff to show that the proffered
explanation is pretextual.

See id.

Defendant argues that each of Plaintiff’s eight
retaliation claims fail as a matter of law, largely because
Plaintiff cannot show a causal link between an adverse action and
protected activity.

Defendant further argues that Plaintiff has

adduced no evidence from which a reasonable jury could find
Defendant’s nondiscriminatory explanations to be pretextual.
Plaintiff, devoting all of three sentences in applying the
governing law to the discovery record, opposes Defendant’s
motion, citing “an on going [sic] antagonism between the
plaintiff and the defendant.”

1.

(Pl.’s Resp. In Opp. at 10.)

Counts One and Six

Defendant argues it is entitled to summary judgment on
Counts One and Six because Plaintiff cannot overcome Defendant’s
showing that the red-circle on Plaintiff’s salary was
nondiscriminatory.6

The Court agrees.

6

While Plaintiff’s

Defendant also argues that Plaintiff’s claim is barred
because she filed a charge of discrimination on March 17, 2008
after learning of the red-circle on April 1, 2007. Defendant’s
contention presumes, however, that each red-circled paycheck
Plaintiff received falls outside the ambit of the Lilly Ledbetter
Fair Pay Act of 2009 (the “FPA”), see 42 U.S.C. §
2000e-5(e)(3)(A), which rendered “each paycheck” stemming “from a
9

transfer to a new position after she engaged in protected
employment activity resulted in her salary being red-circled, the
transfer was part of an agreement between the parties.

Indeed,

Plaintiff agreed with Defendant to be transferred to the new
position while represented by counsel.

As Plaintiff

acknowledges, this agreement automatically led to the red-circle
on her pay.

(See Am. Compl. ¶ 12.)

The January 13, 2006 e-mail

Defendant sent Plaintiff’s counsel confirmed as much, explaining
that Plaintiff’s salary would be “‘red-circled’ . . . until the
ordinary salary for the position reaches her salary via raises
and other adjustments.”

(Def.’s Exs., Dixon Dep. Ex. 3.)

Plaintiff has adduced no evidence that she responded to this
e-mail or otherwise took issue with its representations.

Under

these circumstances, it is questionable whether Plaintiff can
establish an adverse employment action at all.

See Andreoli, 482

F.3d at 649.
At a minimum, however, this series of events provides a
cognizable nondiscriminatory explanation for Defendant’s

discriminatory compensation decision or pay structure . . . a
tainted, independent employment-action that commences the
administrative statute of limitations,” Noel v. Boeing Co., 622
F.3d 266, 271 (3d Cir. 2010). While some courts have suggested
that retaliation claims are not covered by the FPA, see Johnson
v. District of Columbia, 632 F. Supp. 2d 20, 23 (D.D.C. 2009),
the FPA’s applicability to Plaintiff is at least debatable.
However, because it is clear that Plaintiff’s red-circling
retaliation claims fail on the merits, the Court will not delve
into this issue or address Defendant’s statute of limitations
argument.
10

action—namely, that Defendant believed Plaintiff agreed to have
her salary red-circled as part of the settlement.

See Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (“The employer satisfies
its burden of production by introducing evidence which, taken as
true, would permit the conclusion that there was a
nondiscriminatory reason for the unfavorable employment decision.
The employer need not prove that the tendered reason actually
motivated its behavior . . . .” (internal citation omitted)).
The burden, therefore, shifts to Plaintiff to demonstrate that
Defendant’s explanation is a pretext for retaliation.
Seeney, 2010 WL 1657185, at *3.
this burden.

See

Plaintiff has failed to meet

This is particularly true given that Defendant

promptly took remedial actions upon learning Plaintiff did not
actually assent to the red-circle on her pay.

Indeed, though the

pay system still reads Plaintiff (and many other employees) as
red-circled, Plaintiff is compensated as if she is not redcircled.
Because Plaintiff has put forth no evidence from which
a reasonable jury could find Defendant’s explanation to be
pretextual, Defendant’s motion for summary judgment will be
granted as to Counts One and Six.

2.

Counts Two, Three, Seven, and Eight

Defendant argues summary judgment should be granted as

11

to Counts Two, Three, Seven, and Eight because Plaintiff cannot
(1) show a causal link between the failure to compensate her for
overtime or promote her and her September 2005 harassment claim;
or (2) overcome Defendant’s proffered nondiscriminatory
explanations.

Defendant is correct on both grounds.

First, there is no evidence from which a jury can
reasonably find a “‘causal link’ . . . between the adverse action
and the protected activity,” Andreoli, 482 F.3d at 649, because
the decisions to not pay Plaintiff the thirteen hours of overtime
or promote her to a nonexistent position occurred roughly two
years after Plaintiff’s sexual harassment claim and were not
accompanied by any other evidence suggestive of causation, see
Petril v. Cheyney Univ. of Pa., No. 10-6777, 2011 WL 1627928, at
*6 (E.D. Pa. Apr. 29, 2011) (“To show causation, a plaintiff
‘usually must prove either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with
timing to establish a causal link.’” (quoting Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)));
Coleman v. Textron, Inc., No. 02-8881, 2005 WL 713346, at *5
(E.D. Pa. Mar. 28, 2005) (“[T]he year and a half delay between
the protected activity and the bumping cuts against the
establishment of a causal link . . . .”).
The evidence concerning the individuals responsible for

12

the decisions in question supports this conclusion.

Indeed,

while Ms. Jones was aware of Plaintiff’s protected activity, she
also welcomed Plaintiff into the Office of Student Placement and
complimented Plaintiff’s work to others.
at 103:18-19, 263:11-18.)

(See, e.g., McZeal Dep.

And there is no evidence that Lee, who

was responsible for Plaintiff’s “lack of promotion,” was aware of
Plaintiff’s sexual harassment claim at all.

Instead, as his

affidavit reflects, he first learned of it when Plaintiff filed
this lawsuit.

(See Def.’s Exs., SDP SJM Ex.)

Second, Plaintiff has adduced no evidence to overcome
Defendant’s nondiscriminatory explanation that (1) Plaintiff was
actually paid for all the overtime hours she worked; and (2) the
position Plaintiff attempted to create was not developed due to
budgetary restrictions.

As to the overtime, Plaintiff received

other overtime payments during this period, and was informed by
her supervisor that, her complaints notwithstanding, she had
actually been “paid overtime for all the hours that [she]
worked.”

(Def.’s Exs., SDP 00043.)

Plaintiff has not so much as

suggested that this nondiscriminatory explanation for failing to
pay Plaintiff for the thirteen hours of overtime is a pretext for
illegal retaliation.

The same is true with respect to

Defendant’s explanation of its failure to promote Plaintiff;
there is no evidence from which a reasonable jury could conclude
that the budgetary considerations cited by Defendant are

13

pretextual.
Thus, Defendant’s motion for summary judgment will be
granted as to Counts Two, Three, Seven, and Eight.

3.

Count Four

Count Four alleges that Defendant retaliated against
Plaintiff by requiring security to let her into the building to
complete overtime during after-business hours in November 2009
and December 2009.

While Plaintiff’s complaint does not clearly

state whether this action was a retaliatory response to
Plaintiff’s 2005 sexual harassment claim or Plaintiff’s filing of
this lawsuit, Plaintiff’s claim fails either way because
Plaintiff cannot establish that this incident was an adverse
employment action.

See Andreoli, 482 F.3d at 649.

Indeed, while

Plaintiff’s keycard did not permit 24/7 access to the building,
security was directed to let her in to complete approved
overtime.

(McZeal Dep. at 243:3-18, 245:15-23.)

Moreover,

Plaintiff was not the only employee subjected to this policy, and
successfully completed all approved overtime hours.

(See id.;

Def.’s Exs., SDP 00180.)
Under these circumstances, Plaintiff cannot show that
“a reasonable employee” would have found Defendant’s actions to
be “materially adverse” because they would not “‘dissuade[] a
reasonable worker from making or supporting a charge of

14

discrimination.’”

Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211,
1219 (D.C. Cir. 2006)).

At best, Plaintiff suffered a de minimis

inconvenience to which similarly situated employees were also
subjected.

She was in no way deprived of work opportunities, or

otherwise harmed by Defendant’s decision.
Because no reasonable jury could find the denial of
24/7 keycard access to be an adverse employment action,
Defendant’s motion for summary judgment will be granted as to
Count Four.

4.

Count Five

Finally, Defendant asks the Court to enter summary
judgment in its favor on Count Five, which pleads that Defendant
retaliated against Plaintiff by depriving her of work.

Like

Count Four, this claim does not make clear whether the alleged
retaliation stemmed from Plaintiff’s sexual harassment claim or
this lawsuit.

Either way, however, Plaintiff bears the burden of

demonstrating a causal link between the protected activity and
the retaliation.
cannot do so.
2005.

See Andreoli, 482 F.3d at 649.

Plaintiff

As noted, the sexual harassment claim was made in

This lawsuit was filed June 2009 with a charge of

discrimination being made in March 2008.

Applying the latest of

these three dates, nearly a year had elapsed between Plaintiff’s

15

protected activity and the allegedly retaliatory conduct.

This

militates against a causal link, see Coleman, 2005 WL 713346, at
*5, and the record does not support Plaintiff’s conclusory
reference to “an on going [sic] antagonism,” (Pl.’s Resp. In Opp.
at 10.)

Moreover, Plaintiff offers no evidence from which a

reasonable jury could find pretextual Defendant’s
nondiscriminatory explanation that the shortage in work stemmed
from her supervisor being “swamped” and facing an impending
deadline.

(McZeal Dep. at 252:13-19.)
Thus, Defendant’s motion for summary judgment will be

granted as to Count Five.

IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for

summary judgment will be granted.
follow.

16

An appropriate Order will